HKSAR v. BALAKRISHNAN MAHENDRAN AND ANOTHER

HCCC 2/2019

[2021] HKCFI 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2019

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REASONS FOR DECISION

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Charges

1.  BALAKRISHNAN MAHENDRAN (D1) was originally the defendant in HCCC 362/2018 and ADJEI ROBERT (also known as ADJEI KING) (D2) was the defendant in HCCC 2/2019.  The two cases were consolidated with the case number of HCCC 2/2019 being adopted.

2.  Both defendants were jointly charged with the following offences:

(1).  forcibly taking away a person named Munatsi Kingsley also known as Kingston Fernadez (“Kingsley”) with intent to procure a ransom for the liberation of Kingsley (1^st count);

(2).  kidnapping Kingsley (2^nd count, alternative to 1^st count); and

(3).  forcible detention of a person named Babauskis Inars (“Inars”) with intent to procure a ransom for the liberation of Inars (3^rd count).

Chronology

3.  There were originally two cases involving the two defendants as they were arrested at different times.  The indictment against D1 was filed on 28 November 2018 whilst the indictment against D2 was filed on 14 January 2019.  The two cases were consolidated on 30 January 2019, with Case Management Hearing (CMH) set down on 10 April 2019 and trial to run from 22 August – 6 September 2019.

4.  On 10 April 2019 CMH was held. D1, who was on bail, was allowed to have bail extended.  D2 was remanded in custody.  A further CMH was ordered to take place on 28 May 2019.

5.  By a letter dated 14 May 2019, the CMH was vacated (due to the fact that I was detained overseas for a personal matter).

6.  By another letter dated 11 June 2019, a further CMH was arranged to take place on 2 July 2019.

7.  On 2 July 2019, both defendants were present.  Trial was ordered to take place as scheduled, with two extra days to be added.  D1’s bail was extended and D2 was again remanded in custody.

8.  On 21 August 2019 the prosecution wrote to the Court, informing the Court that Inars did not board the flight to Hong Kong as scheduled.

9.  On 22 August 2019, which was the first day of trial scheduled, Inars failed to turn up.  The case was adjourned to 4 October 2019 for Mention pending police enquiry on why Inars failed to appear.  D1’s bail was again extended.  D2 was also granted bail on this occasion.

10.  On 4 October 2019, D1 failed to appear.  Warrant of Arrest was issued against him with bail money estreated.  Counsel for D1was discharged.  On that occasion the prosecution informed the Court that Inars failed to turn up due to the unstable social condition in Hong Kong.  The Court directed the prosecution to ascertain the length of the trial and whether to proceed against D2 on his own.  The case was passed on to the Listing Judge for re-listing.

11.  On 21 November 2019, parties were informed another CMH would take place on 9 March 2020, with new trial dates from 11 June 2020 to 24 June 2020.

12.  Due to the General Adjournment Period (GAP) imposed by the Judiciary as a result of the Covid-19 pandemic, the case was re-scheduled as follows: CMH scheduled on 9 March 2020 was relisted to 27 March 2020, then relisted again to 16 April 2020.

13.  On 16 April 2020, CMH was held.  D1 was still at large.  The prosecution informed the Court that Inars, who was willing to testify, was in India and due to the lockdown could not come to Hong Kong.  Due to the uncertainty, the trial dates were vacated.  The prosecution informed the Court that the trial against D2 would proceed in any event.  The defendant’s bail was extended.

14.  On 8 May 2020, the case was fixed for Mention on 14 December 2020 with trial dates fixed on 15, 18-22, 25-28 January 2021.

15.  On 14 December 2020, D1 was still at large.  The prosecution indicated to the Court that an application would be made to proceed the trial of D1 in his absence.  The Court then fixed 7 January 2021 for submissions.

The application

16.  After hearing submissions on 7 January 2021, I refused the application of the prosecution to have the trial of D1 in absentia together with D2 on the ground that it would be unfair to D2, indicating that I was prepared to have the trial of D1 in absentia. I will now give my reasons.

The law and applicable principles

17.  There is really no dispute between parties as to the law and applicable principles.  I am grateful to Mr Ken Ng, counsel prosecuting on fiat, who has set out the relevant legal principles[1] in his written submission and I will adopt them here :

“The Legal principles for Trial in absentia

10. In the case of House of Lords in R V Jones [2003] 1 AC, also reported in [2002] 2 CR. App R 9, the question before the House, certified by the Court of Appeal (Criminal Division) as one of general public importance, is this:

‘Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?’

11. In the case of HKSAR V KWAN WAI KEUNG & ORS. CACC 259/2011 (Judgment only available in Chinese) at para. 6 cited with approval of the principles enunciated by Lord Bingham in the said case of R V Jones, at paras. 6,10,11&12. They are extracted and repeated below:

‘6. For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant … or misbehaviour .....; or because the defendant has voluntarily absconded. In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. .... But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.’[2]

‘10. In turning to general principles, I find it hard to discern any principled distinction between continuing a trial in the absence, for whatever reason, of a defendant and beginning a trial which has not in law commenced. If, as is accepted, the court may properly exercise its discretion to permit the one, why should it not permit the other? It is of course true that if a trial has begun and run for some time, the inconvenience to witnesses of attending to testify again on a later occasion, and the waste of time and money, are likely to be greater if the trial is stopped than in the case of a trial that has never begun. But these are matters which, however relevant to the exercise of discretion, provide no ground for holding that a discretion exists in the one case and not in the other ………..If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial , voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.’[3] (emphasis added)

‘11. ……..His legal representatives would be likely to regard their retainer as terminated by his conduct in absconding, .… Thus there would be no cross–examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. …………..The answer to this contention is, in my opinion, that one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it.[4] If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after pull professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.’

‘12. Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. …… But a system of criminal justice should not be open to manipulation in such a way.’[5]

12. In an earlier case of UK Court of Appeal in R V Hayward [2001] QB 862, at para. 22 setting out the principles to guide the English courts in relation to the trial of a defendant in his absence. The principles are repeated below:

1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2． Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

(iii) the likely length of such an adjournment;

(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

(v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;

(viii) the seriousness of the offence, which affects defendant, victim and public[6];

(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x) the effect of delay on the memories of witnesses;

(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

6. If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.”

Submission of the prosecution

18.  Mr Ng submitted that the key witness (Inars), who was overseas, had expressed his willingness to come to Hong Kong to testify.  Exemption of the mandatory 14 days’ quarantine period has been successfully obtained from the Department of Health so that Inars could give evidence immediately 2 days after his arrival.  It was submitted that Inars may not be willing to come to Hong Kong to testify again should there be another trial for D1.

19.  As D2 was present for the trial, there was no reason for D1 to be allowed to manipulate the situation and had an unjustified advantage over D2.  To do otherwise would encourage other defendants to behave in a similar fashion, Mr Ng submitted.

20.  D1 has been placed on the wanted and watched list and he was still at large.  There was no certainty as to when he could be apprehended.  Since the incident happened in 2017, memories of witnesses may be further faded if there was further delay.  A separate trial for D2 pending the apprehension of D1 will defeat the interest of justice.

21.  Since D1 deliberately failed to turn up in court and to contact his own lawyer, he could not be heard to complain later that the trial proceeded in his absence and without legal representation.  There is no reason why the trial should not commence in D1’s absence and tried together with the defendant, provided the trial is conducted fairly.

22.  Mr Ng submitted that taking all the relevant factors into consideration, the court’s discretion should be exercised in favour of ordering a trial in absentia against D1. 

Submission of D2

23.  Mr John McNamara, counsel for D2, submitted that D1 had disappeared for 18 months and was still at large.  Placing D1 on the wanted list or the watched list did not help as D1 would not be trying to enter into Hong Kong.  There was no real prospect of D1 being apprehended to face trial.

24.  The evidence against D1 mainly come from Inars and the police officers who had arrested him.  In D1’s video-recorded interviews he made many allegations regarding the alleged involvement of D2. When D1 was present before this Court and was legally represented, his counsel has informed this Court that the admissibility of the video-recorded interviews would be objected to.

25.  Should a joint trial take place in the absence of D1, D1’s video-recorded interviews would be before the jury.  Although the jury would be warned against using the allegations against D2 contained in D1’s video-recorded interviews, the prejudice would be significant and could well deprive D2 of a fair trial. In a trial against D2 only, this evidence would be inadmissible and not before the jury.

26.  Mr McNamara submitted that the main principles apposite to this case are[7]:

“THE LAW

9. The law is uncontroversial. The main principles (apposite to this case) are:

(a) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

(b) That discretion should be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

(c) In exercising the discretion the judge must have regard to all the circumstances of the case including:

‘where there is more than one defendant and not all have absconded, the prospects of a fair trial for the defendants who are present’.

10. The prosecution has not demonstrated that this is a rare and exceptional case, no doubt because the opposite is true. There is nothing at all rare and exceptional about this case. That being so, the prosecution application should be summarily dismissed.

11. However there is the added factor that the prejudicial matters that would arise if D1 is also tried at the same time would inevitably hinder the prospects of D2 receiving a fair trial for the reasons set out above. It is significant that the prosecution does not even address that important issue in its written submission.”

A consideration of the submission

27.  There is really no dispute as to the relevant legal principles.  After considering the submissions and the circumstances of this case, I was of the view that this was not a proper case for me to exercise my discretion to order D1 to be tried in absentia together with D2 as there were prejudicial matters (as submitted by Mr McNamara) that would arise if D1 was also tried at the same time as D2, such matters would inevitably hinder the prospect of D2 receiving a fair trial.

28.  On the other hand, I was of the view that a trial of D1 alone in absentia would be proper.

Post script

29.  As a result of my ruling, D2 was to be tried on his own.  The trial did not take place due to the unexpected unavailability of the Ewe interpreter.  Since Inars was already in Hong Kong and ready to testify, I proceeded with the trial of D1 alone in abentia, with a new case no HCCC 2A/2019.  

[1] Prosecution’s Skeleton Submission/Authorities

[2] The principles adopted by HKSAR V KWAN WAI KEUNG & ORS. CACC259/2011 at paras. 6(1) to 6(4).

[3] The principles adopted by KWAN’s case at para.6(5) ante

[4] The principles adopted by KWAN’s case at para.6(6) ante

[5] The principle adopted by KWAN’s case at para.6(7) ante

[6] In the said case of House of Lords in R V Jones [2003] 1 AC, as per Lord Bingham at para. 12, “seriousness of the offence, which affects defendant, victim and public” … should not be considered as a factor.  It is likewise so held in SINGH GURSEWAK CACC399/2013 at para.30.

[7] 2^nd Accused’s submissions